Network Neutrality Gets Court Dates

Washington — The U.S. Court of Appeals for the
D.C. Circuit has set a briefing schedule for a challenge
of the Federal Communications Commission’s network
neutrality rules by telco Verizon Communications and
wireless carrier MetroPCS, a schedule that suggests there
won’t be a decision until sometime in 2013.

A related case is on a faster track, though, and could
provide an early read into the court’s thinking.

According to a copy of the schedule, initial briefs in the
Verizon/MetroPCS case are due July 2, with final briefs due
Nov. 21. One attorney following the case said that signals
oral argument in the January-February time frame.

The parties had agreed on a briefi ng schedule in April,
which they submitted to the court and which the court
essentially approved.

FILING SEPARATELY

The court also agreed to let MetroPCS file a separate reply
brief, sought because Verizon and MetroPCS are on
opposite sides in a separate challenge to FCC data-roaming
rules (though the two companies want to file a joint
brief as well).

In the data-roaming challenge, Verizon and MetroPCS
disagree over the FCC’s authority to regulate wireless
broadband, also at issue in the network-neutrality rules
challenge.

Media-reform group Free Press will also
get to file a separate reply brief because it
opposes the FCC for entirely different reasons.
Free Press thinks the rules don’t go far
enough, the others contend they go too far.

In the network-neutrality rule challenge,
launched in January 2011, Verizon said the
FCC’s Dec. 21, 2010, order exceeds the agency’s
authority, is arbitrary and capricious
and an abuse of discretion, besides being
unconstitutional. Verizon asked the FCC
to vacate the order and “provide such additional
relief as may be appropriate.”

Cable operators have not challenged the
rules. The National Cable & Telecommunications
Association, cable’s main lobby
group, was at the table for talks that produced the rules,
though cable operators were supportive primarily to
avoid the alternative of classifying Internet access as a
Title 2 service subject to access conditions.

Operators said the rules were unnecessary. There
have not been any complaints lodged under the new
rules — adopted last fall — FCC chairman Julius Genachowski
said during an oversight hearing on the Hill
two weeks ago.

The FCC will be making its defense of both its network
neutrality rules without the chief proponent of
that legal case, general counsel Austin
Schlick, who said two weeks ago he
was exiting the commission. An FCC
spokesperson had no comment on the
timing of that move.

WATCH ROAMING CASE

Scott Cleland, industry analyst and head
of the cable-backed Netcompetition.org,
suggests the data-roaming case is one to
watch closely.

“[I]t is a bellwether for the open internet
order because they argue the same
basic legal authority and constitutional
issues,” Cleland said.

That case has already been briefed,
so the odds are strong it will be decided
first, but no oral argument has yet been set, according
to Verizon.

Verizon argues that the FCC has overstepped its
authority in regulating wireless broadband, just as
it is arguing the agency has done in regulating wired
broadband under the network-neutrality rules.